MORRILL v. WEAVER

April 19, 2002

MICHAEL MORRILL, BEN PRICE, KURT SHOTKO, GUY ANTHONY AND ERIC PRINDLE, PLAINTIFFSV.C. MICHAEL WEAVER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF PENNSYLVANIA, AND RICHARD FILLING, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OVERSEEING PENNSYLVANIA'S BUREAU OF COMMISSION, ELECTIONS AND DEFENDANTS.

The opinion of the court was delivered by: Van Antwerpen, District Judge.

OPINION AND ORDER

This case concerns a constitutional challenge brought on March 25, 2002
by five Green Party candidates and activists ("Plaintiffs"), requesting a
preliminary injunction restraining enforcement of a Commonwealth of
Pennsylvania statute, 25 P.S. § 2911(d) ("§ 2911(d)" or "the
statute"), regarding nominations of candidates for political office. The
statute requires that election petition "affiants" for a particular
candidate be "qualified electors" of the district in which that candidate
is running. Plaintiffs allege that if "qualified electors" must be
registered voters living in particular electoral districts, then §
2911(d) violates their rights to free expression and association under
the First and Fourteenth Amendments to the United States Constitution.*fn1

The parties agreed in a telephonic conference on March 27, 2002 that
they would rest on their pleadings so that the trial on the merits could
be consolidated with the preliminary injunction hearing, inasmuch as
there were no factual issues in dispute — only legal questions.
Accordingly, the parties were notified by our March 28, 2002 order that
under Fed.R.Civ.P. 65(a)(2), the trial on the merits would be advanced
and joined with the hearing before us on April 10, 2002. Thus, the
initial request for a preliminary injunction became a hearing on the
merits of a permanent injunction. On April 18, 2002, we received an
amicus curiae brief from Mark B. Cohen, Esq., a longtime Pennsylvania
legislator and Chairman of the Democratic Caucus.

In consideration of all the evidence and arguments before us, we will
now grant a permanent injunction against enforcement of certain
provisions of 25 P.S. § 2911(d), which we find unconstitutionally
restrain the freedom of political expression and association of the
plaintiff candidates and activists, among others.

If the Commonwealth defines "qualified electors" who are permitted to
verify election petition signatures such that the phrase includes only
registered voters, then the statute is clearly unconstitutional under
Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182,
119 S.Ct. 636, 142 L.Ed.2d 599 (1999). Although lower state courts have
construed the phrase "qualified electors" in other contexts, see, e.g.,
In re: Nomination Paper of Cooper, 102 Pa. Commw. 133, 516 A.2d 1285
(1984) ("qualified electors" signing a petition must be registered
voters), the Pennsylvania Supreme Court has not specifically limited the
phrase to apply to registered voters. We believe the Pennsylvania Supreme
Court would attempt to give 25 P.S. § 2911(d) a constitutional
construction, and hold that the term "qualified electors" applies to all
residents of a particular electoral district.

Nonetheless, even if we define the phrase "qualified electors" to
include all residents of an electoral district, we believe that 25 P.S.
§ 2911(d) unduly infringes upon the Plaintiffs' and others' First
Amendment free speech and free association rights, which strongly protect
political activity. We find that the Commonwealth has articulated no
compelling or sufficient reason for requiring election petition
"affiants" to be residents of a specific district, as opposed to
residents of the Commonwealth at-large.

Our decision to restrain enforcement of provisions of 25 P.S. §
2911(d) dictates that "affiants" to elections petitions need not be
registered voters and may reside anywhere in the Commonwealth.*fn2 The
Commonwealth must also pay Plaintiffs' fees and costs associated with
this litigation to vindicate their constitutional rights.

I. BACKGROUND

The Plaintiffs are Green Party candidates and activists. Michael
Morrill is the Green Party's 2002 gubernatorial candidate. Ben Price is
the Green Party's 2002 candidate for the U.S. House of Representatives in
the 19th congressional district. Kurt Shotko aspires to be the Green
Party's U.S. congressional candidate in the 10th district. Guy Anthony is
the Green Party's candidate for state representative in the 144th
district. Eric Prindle is a Green Party activist and the Field Director
for Morrill for Governor.

Because the Green Party is considered a minor political party in
Pennsylvania under 25 P.S. §§ 2831 and 2872.2,*fn3 it does not hold
primary elections. Instead, its candidates are only nominated by obtaining
signatures on "nomination papers." 25 P.S. §§ 2872.2(a), 2911. The
Commonwealth explains, "For statewide offices, the candidate must obtain
[a number of signatures equal to] at least two percent of the largest
number of votes cast for any elected candidate in the state at large at
the last preceding [statewide] election." 25 P.S. § 2911(b), cited in
Def. Memo., pp. 2-3. "For non-statewide offices, the candidate must
obtain at least two percent of the largest number of votes cast for any
officer (except a judge) elected in the election district where the
nomination is sought in the last preceding election." Id. The parties
agree that before August 1, 2002, Morrill needs to obtain more than
21,000 signatures to become a candidate for governor, while Price and
Shotko need approximately 3,000 signatures and Anthony needs
approximately 300 signatures. Def. Memo., p. 3; Pl. Prelim. Statement,
pp. 2-4.

The challenged statute, 25 P.S. § 2911(d), a provision of the
Pennsylvania Election Code concerning the nomination of candidates, reads
as follows:

Nomination papers may be on one or more sheets and
different sheets must be used for signers resident in
different counties. . . . Each sheet shall have
appended thereto the affidavit of some person, not
necessarily a signer, and not necessarily the same
person on each sheet, setting forth — (1) that
the affiant is a qualified elector of the State, or of
the electoral district, as the case may be, referred
to in the nomination paper; (2) his residence, giving
city, borough or township with street and number, if
any; (3) that the signers signed with full knowledge
of the contents of the nomination paper; (4) that
their respective residences are correctly stated
therein; (5) that they all reside in the county named
in the affidavit; (6) that each signed on the date set
opposite his name; and (7) that, to the best of
affiant's knowledge and belief, the signers are
qualified electors of the State, or of the electoral
district, as the case may be. (Emphasis supplied.)

The parties agreed at the hearing that under §
2911(d), Plaintiffs cannot affirm petition signatures
for any candidates running in non-statewide elections
outside the electoral districts where Plaintiffs
respectively reside. Hearing Transcript, pp. 29-33.
Though the Commonwealth emphasizes that technically,
anyone may circulate petitions, Defendants acknowledge
that under the statute as written, a "qualified
elector" residing in the particular electoral district
must be present to serve as an "affiant," verifying
each signature collected by out-of-district
circulators.

Id.

Thus, under the statute, Morrill cannot affirm petition signatures for
Green Party candidates for U.S. Congress, the state legislature or other
down-ballot regional or local positions outside his own electoral
district. After redistricting,*fn4 Price and
Shotko claim to reside
outside the geographic boundaries of the congressional districts where
they respectively seek office.*fn5 If they reside outside their
districts, then the parties agree that Price and Shotko could not affirm
signatures on their own nominating petitions. Likewise, Anthony cannot
use volunteers from outside his legislative district to collect
signatures for his petition, unless such volunteers are accompanied by
"qualified electors" from within the district, who may affirm the
validity of any signatures collected. Prindle, the Green Party activist,
may not create a team of Green Party members to traverse the state
collecting nominating petition signatures for a slate of candidates,
unless the team is accompanied in each district by a local "affiant"
overseeing and certifying the veracity of each signature.*fn6

On March 25, 2002, the Plaintiffs filed a Motion for a Preliminary
Injunction asking that we declare portions of 25 P.S. § 2911(d)
unconstitutional and that we enjoin enforcement of such provisions,
granting appropriate relief and awarding Plaintiffs costs and fees.*fn7
Plaintiffs stated without dispute in a telephonic conference on March
27, 2002 that this case was inappropriate for a three-judge panel, and
that our court had jurisdiction to decide on the application for
injunction. Telephone Conference Transcript, pp. 6-7. The parties also
agreed that they would rest on their pleadings so that the trial on the
merits could be consolidated with the preliminary injunction hearing,
inasmuch as there were no factual issues in dispute — only legal
questions. Id. at 15-17; Hearing Transcript, pp. 2-3. Accordingly, the
parties were notified by our March 28, 2002 order that under Fed.R.Civ.P.
65(a)(2), the trial on the merits would be advanced and consolidated with
the hearing before us on April 10, 2002. Defendants filed their response
on April 8, 2002 and we heard oral argument from Plaintiffs and the
Attorney General's representatives on April 10, 2002. On that date, we
also granted Mark B. Cohen, Esquire's motion to file an amicus brief. We
received the amicus brief on April 18, 2002.

Under P.L. 94-381, 28 U.S.C. § 2284 was amended such that today, a
three-judge court is only required upon hearing a constitutional
challenge to "the apportionment of congressional districts or the
apportionment of any statewide legislative body" or where otherwise
required by an Act of Congress. Single district judges again have
jurisdiction over suits to enjoin state statutes on constitutional
grounds. LaRouche v. Fowler, 152 F.3d 974, 981 FN3 (D.C. Cir. 1998).
Thus, we consider a constitutional challenge to § 2911(d) without a
three-judge panel, applying P.L. 94-381.*fn8

III. JUSTICIABILITY

Under Article III of the Constitution, a federal court may exercise
jurisdiction only where there is an actual case or controversy to be
decided. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d
113 (1969). We must assess whether the situation before us is one "of
sufficient immediacy and reality" to warrant the issuance of declaratory
judgment and an injunction. Maryland Casualty Co. v. Pacific Coal and Oil
Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).

At the hearing on April 10, 2002, the Commonwealth repeatedly asserted
that Plaintiffs' claims remain unripe for our consideration, inasmuch as
the Pennsylvania Secretary of State has not yet excluded any candidates
from the 2002 ballot for failure to obtain adequately-affirmed
signatures. See, e.g., Hearing Transcript, p. 35. The Commonwealth
argued: "These individuals could go about their business and . . .
collect the required number of signatures from anybody in the United
States or the world. . . . The Secretary of State may miss it. I'm not
saying he should or he shouldn't. Someone may come in and object [to
signatures] like they did in" cases from other Circuits, and the State
could invalidate petition signatures based on such objections. Hearing
Transcript, pp. 16, 22. At this point, the case would presumably ripen,
in the Commonwealth's view. Id. The Commonwealth concluded that thus far
there is no "injury to [the candidates'] ability to run for office." Id.
at 35.

The Commonwealth seems to invoke the principle that plaintiffs
challenging the validity of a state statute may bring suit against the
officials charged with the statute's enforcement "only if the official[s]
ha[ve] either enforced, or threatened to enforce, the statute against the
plaintiffs." Rode v. Dellarciprete, 845 F.2d 1195, 1209 FN 9 (3d Cir.
1988).

Plaintiffs' counsel responded at the April 10, 2002 hearing as
follows:

And as the affidavits make clear, people have declined
to be circulators now that it is clear . . . that they
cannot engage in it consistent with what the law
requires. Hearing Transcript, pp. 35-36.

The Plaintiffs' argument recalls the rule of Turner v. Fouche,
396 U.S. 346, 362 FN 23, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), that a
State "can hardly urge that her county officials may be depended on to
ignore a provision of state law." Plaintiffs need not "wait for the axe
to fall" on them. Berger v. Heckler, 771 F.2d 1556, 1563 (2nd Cir.
1985). Moreover, they allege they are already altering their activity
— refraining from particular political speech and organization
— to conform to the allegedly unconstitutional statutory scheme.
See Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69
L.Ed. 1070 (1925); Zielasko v. State of Ohio, 873 F.2d 957, 958 (6th
Cir. 1989).

Thus, weighing the parties' arguments, we must determine if there
exists an imminent likelihood of constitutional violation based on the
Commonwealth's enforcement of § 2911(d) and/or a shift in Plaintiffs'
activity in anticipation of such violation, or if the alleged danger is
as the Commonwealth describes it: merely speculative.

The Commonwealth is uncertain whether or not it would enforce the
requirement in § 2911(d) that nominating petition affiants be
"qualified electors" such that the term would exclude residents not
registered to vote. Hearing Transcript, pp. 14-15. If construing
"qualified electors" to include registered voters were the only basis for
the Plaintiffs' suit, then we might find that the Plaintiffs' suit was
unripe, because there remains a serious possibility that the Commonwealth
would not attempt to impose such a construction upon § 2911(d). In
other words, a case or controversy might never arise solely based on
candidates' petitions affirmed by unregistered individuals within
particular electoral districts.

On the other hand, the Commonwealth acknowledges that under §
2911(d), it would seek to exclude petition signatures affirmed by
individuals residing outside the electoral districts to which such
signatures pertain. See, e.g., Hearing Transcript, pp. 32-33. The
Commonwealth raises the possibility that the Secretary of State might
overlook enforcement of § 2911(d) in a particular case if a challenge
to the signatures were never raised by an opposing candidate. Id. at
16-17. However, the Commonwealth does not dispute the fact that it would
consider such signatures legally invalid and would reject them upon
receiving a challenge. Id. at 19-20.

We believe these facts suggest a conclusion like the Supreme Court's in
Society of the Sisters, in which the Court restrained Oregon's Compulsory
Education Act, which would have required all Oregon children between
certain ages to attend public schools. Society of the Sisters, 268 U.S.
at 529-532. Though the effective date of the statute had not yet
arrived, the Court granted the injunction requested by the organization
administering a private school because the Act had "already caused the
withdrawal from its schools of children who would otherwise continue, and
[the private school's] income has steadily declined. The appellants,
public officers, [had] proclaimed their purpose strictly to enforce the
statute." Id. at 532. The Court concluded, "Prevention of impending
injury by unlawful action is a well-recognized function of courts of
equity." Id. at 536.*fn9

Likewise, in the case at bar, as we have noted, the Plaintiffs are
already losing valuable campaign time and declining offers from would-be
volunteers because of § 2911(d), and the Commonwealth maintains that
it would strike signatures affirmed by individuals residing outside
particular electoral districts where such signatures are challenged.

Price and Shotko have been particularly burdened, because they have not
been able to collect signatures for their own petitions, since their
residences are outside the recently-redrawn congressional districts in
which they are running for office. Pl. Motion, Ex. B, C. Though the
redistricting plan was recently invalidated (see Vieth, 2002 WL 530870)
and it is possible that these particular concerns of Price and Shotko may
be mooted, the scenario is "capable of repetition, yet evading review"
— a recognized exception to the mootness doctrine. Southern Pacific
Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31
S.Ct. 279, 283, 55 L.Ed. 310. That is, we can easily envision future
scenarios — possibly even in this election — in which these
individuals could not affirm signatures on their own nominating petitions
because of § 2911(d)'s in-district residency requirement for
"qualified electors."*fn10 The need for resolution
of § 2911(d)'s
constitutionality reflects a continuing controversy in the extent of
individual liberties.

Furthermore, the Commonwealth does not dispute Plaintiffs' contention
that many have had their candidacies nullified in past elections for
failure to obtain an adequate number of "valid" signatures, including
Plaintiff Shotko in multiple previous attempts to be listed on the
ballot. With respect to such past, failed candidacies, though the
individuals cannot lay claims to offices for which they were never able
to run, the Commonwealth's alleged unconstitutional enforcement of §
2911(d) again meets the "capable of repetition, yet evading review"
standard. See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23
L.Ed.2d 1 (1969), citing Southern Pacific Terminal Co., 219 U.S. at 515
("[W]hile the 1968 election is over, . . . as long as Illinois maintains
her present system as she has done since 1935 . . . [t]he problem is . . .
`capable of repetition, yet evading review.'"). Our abiding interest in
the constitutionality of the elections process (Meyer v. Grant,
486 U.S. 414, 425, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988)) cannot be
negated by adjudging every case unripe before the election or moot after
the election.

Moreover, the Commonwealth's Nomination Paper (a document marked, "DSBE
210MPP Department of State (Rev. 1/02)") unambiguously requires that the
affiant swear or affirm in the presence of a notary or person empowered
to take legally-binding acknowledgments that the affiant to the petition
signatures is a "qualified elector of the electoral districts referred to
in this nomination paper," (emphasis supplied) stating an appropriate
address. If Plaintiffs take oaths to being "qualified electors" outside
particular electoral districts in which they reside, they will subject
themselves to the possibility of prosecution for perjury. 25 P.S. §
3502.*fn11 Indeed, if they were convicted of perjury, a type of crimen
falsi, they would be unfit to hold public office in Pennsylvania under
the laws of the Commonwealth and could be subject to fines and
imprisonment. See, e.g., id.; Commonwealth ex rel. Baldwin v. Richard,
561 Pa. 489, 751 A.2d 647, 652-653 (2000); Bolus v. Fisher, 785 A.2d 174,
178 (Pa.Cmwlth. 2001); In re Cicchetti, 697 A.2d 297, 316
(Pa.Ct.Jud.Disc. 1997).

In a similar situation, the Sixth Circuit in Zielasko found the
plaintiffs asserted a justiciable case or controversy regarding a
provision of an Ohio statute requiring that candidates for office
be younger than 70 — though the candidate, Zielasko, had not yet
even formally ...

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